Some important facts

For instance, if you inadvertently infringe someone’s trade mark, you could be sued – and required to change your business name and remove all traces of the name from your business, products, labelling, packaging, vehicles, stationery, advertising material, website and uniforms.

Furthermore, when establishing a business, you should not spend money on any of the above items until the name has been registered in case it is unavailable.

What takes precedence?

Registering a business name, company name or domain name does not give you any proprietary right (ownership) to that name. Only a trade mark can give you that protection. The same word(s) can be registered as a business name, company name, domain name and trade mark by different people, so registering a trade mark will afford you the best protection.

How does each name differ?

Business name

Generally, you will need to register a business name with the Australian Securities & Investments Commission (ASIC) if you carry on a business or trade within Australia and you are not trading under your own name.

Company name

Is a name registered under federal Corporations Law administered by the Australian Securities and Investments Commission (ASIC). If your company chooses to trade under a name different from its company name, the company must register the trading name as a business name.

Trade mark

A trade mark is a word, phrase, letter, number, logo, picture, sound, smell, shape, aspect of packaging or a combination of any of these that is used to distinguish the products or services of a trader from other traders. The registered owner of the trade mark has a right to exclusive use of the trade mark throughout Australia for products or services for which it is registered.

Searches

Basic search services are available at IP Australia

The Australian Trade Mark On-line Search System (ATMOSS TM Check) is an easy to use search tool designed for business name applicants to identify pending and registered trade marks which may be similar or identical to their proposed business name.

Professional search services available

Professional searches are also available from patent and trade mark attorneys, legal practitioners and search firms. The IP Australia website provides links to the relevant databases of organisations.

Search ASIC’s registers

It’s also wise to search ASIC’s registers before you decide on a business or company name. ASIC offers an extensive database of Australian company names and business names of each state and territory. The index provides some basic free information on each organisation. Further information may be obtained for a fee.

If the trade mark is available...

Consider applying for a trade mark, because holding the registered trade mark will give you precedence over other businesses and provide you with protection and security.